499 F.2d 29 (1st Cir. 1974), 73-1327, LaFrance v. Bohlinger

Docket Nº:73-1327.
Citation:499 F.2d 29
Party Name:Peter F. LaFRANCE, Petitioner, Appellee, v. George H. BOHLINGER, III, etc., Respondent, Appellant.
Case Date:June 28, 1974
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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499 F.2d 29 (1st Cir. 1974)

Peter F. LaFRANCE, Petitioner, Appellee,

v.

George H. BOHLINGER, III, etc., Respondent, Appellant.

No. 73-1327.

United States Court of Appeals, First Circuit.

June 28, 1974

Argued Jan. 5, 1974.

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Bernard Manning, Asst. Atty. Gen., Boston, Mass., with whom Robert H. Quinn, Atty. Gen., John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div., and David A. Mills, Asst. Atty. Gen., Chief, Crim. Appellate Section, Boston, Mass., were on brief, for appellant.

Alexander Whiteside, II, Boston, Mass. by appointment of the Court, with whom Putnam, Bell & Russell, Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges.

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LEVIN H. CAMPBELL, Circuit Judge.

The main question on appeal is whether a state judge committed constitutional error when he permitted the district attorney to use a witness' prior statement to the police to impeach the witness without a judicial inquiry into its voluntariness and without instructing the jury to pass on its voluntariness. Cf. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The district court ruled that the trial judge's treatment of the statement, which implicated the accused as well as the witness in the crimes for which the former was on trial, violated the right of the accused to due process of law. Massachusetts contends that the Jackson requirements apply only to confessions of an accused, and that procedures required in that case should not be extended to the prior statements of a witness.

The accused, LaFrance, petitioned in the district court for a writ of habeas corpus, and this appeal is from allowance of the writ. He sought release from a Massachusetts correctional institution where he was confined after convictions for manslaughter, leaving the scene of an accident, and operating a motor vehicle without a license and so as to endanger. The facts are set forth comprehensively in the district court's opinion, 365 F.Supp. 198 (D.Mass.1973), as well as in the earlier Supreme Judicial Court opinion, affirming LaFrance's state conviction, 1972 Mass.Adv.Sh. 177, 278 N.E.2d 394. We thus restate only the most essential facts.

LaFrance was indicted for the hit and run death of Paul Butler, who had been struck by a speeding car while standing on the side of the road. Neither the car nor its occupants were identified at the time, and the car itself was never found. At a jury trial in the Superior Court the prosecution presented evidence that LaFrance was aware of the accident suspiciously soon after it had occurred, that he had attempted to get the people whose apartment he had been visiting to provide a false alibi, and that he had admitted guilt in a telephone call to one Wendall Frost. By itself, this evidence was legally sufficient to convict, as the Supreme Judicial Court found. Commonwealth v. LaFrance, supra, 278 N.E.2d at 396. In defense LaFrance took the stand to deny having left the apartment that evening, a complete alibi if believed. Earlier LaFrance's companion, Richard Brown, who was called as a government witness, had likewise testified that he and LaFrance remained at the apartment all evening. However, the prosecutor had shown Brown a typed statement which Brown acknowledged having signed at the police station. In the statement Brown recounted that LaFrance and he had left the apartment, climbed into a stolen car, and, with LaFrance driving, had struck something.

With the court's permission, and over the objections of the defense, the district attorney led and vigorously examined Brown with respect to the contents of the statement. When asked why, in light of his current testimony, he had said what he did, Brown replied that officer Dale Clark had treatened him; he testified that the statement was, in effect, a police fabrication signed because he was strung out on drugs, frightened, and willing to say anything to get back to his cell. Brown denied that the statement was given of his own free will, and persisted in maintaining that it was false. 1

The court advised the jury that the statement was to be regarded solely to determine whether Brown's testimony was truthful and not as evidence that LaFrance had committed the crimes charged. The officers present when Brown gave the statement also testified, asserting that Brown provided all the

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details, seemed 'normal', and made no physical complaints, although he 'broke down and shook and wept; and said he thought this whole thing was a dream.'

The district court decided three issues. First, it rejected, as do we, the Commonwealth's contention that LaFrance did not exhaust state remedies. Although the opinion of the Supreme Judicial Court dealt mostly with state law issues, LaFrance's brief before the court raised, if secondarily and without much focus, the relevant federal claims. Both Jackson, supra and Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 LEd.2d 593 (1967), were cited, and LaFrance specifically complained of the court's neglect 'even to inquire whether the statment had been voluntarily made.'

Second, the district court rejected what it labelled the 'confrontation contention', namely that LaFrance was deprived of the right to confront the witness against him when the contents of Brown's out of court statement were put before the jury. We agree that neither Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), nor Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), apply. In neither case could the witness whose prior statement was in issue be cross examined. Brown, to the contrary, was present and available for cross examination; he did not invoke his privilege against self-incrimination. There was no inability to confront. Nelson v. O'Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971); California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

The final point raised before the district court was that Brown's inculpatory statement should not have been admitted, even for impeachment, without a determination that it was voluntary. The district court, equating the statement with a confession, held that it could not be admitted without a prior judicial determination of voluntariness and without submission of the issue of voluntariness to the jury. We agree that there was a sufficient factual issue concerning whether the statement was...

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